Understanding Premarital Agreements

By David J. Pigott, Esq.
Posted on 10-7-2017
CATEGORIES: Family Law

“Mawage. Mawage is wot bwings us togeder tooday. Mawage, that bwessed awangment, that dweam wifin a dweam… And wuv, tru wuv, will fowow you foweva… So tweasure your wuv.”
– The Impressive Clergyman
The Princess Bride

In the Princess Bride, villain Prince Humperdinck finds his rushed marriage to Buttercup invalidated due to a lack of “I do’s.” Though Prince Humperdinck seemed distraught as the suddenly unbetrothed Buttercup rode off into the sunset with her true love, Westley, he should have been happy Buttercup wasn’t riding off with half his kingdom. After all, Prince Humperdink didn’t have a pre-nup. A pre-nuptial agreement, known in the State of Colorado as a “Premarital Agreement,” can be an effective legal tool for someone looking to protect their assets in the usually unanticipated event of divorce; but, it must be done correctly if it’s going to be effective.

Note: This article is based upon HB13-1204 which instituted the Uniform Premarital and Marital Agreement Act (also known as the Colorado Marital Agreement Act) and takes effect July 1, 2014. For information concerning the state of the law prior to July 1, 2014, contact your attorney.

Assuming Prince Humperdinck was subject to the laws of the State of Colorado (which, admittedly, he wasn’t), and he wanted a Premarital Agreement, the first thing he would have to do is disclose his assets. He would have to tell Buttercup about his holdings in the royal treasury (and any other bank accounts or investment accounts), the secret tree prison where he was keeping Westley (and any other real property), and the value of all his horses (and all other personal property). He would also have to tell her about the money he owed neighboring kingdoms (and all other debts/liabilities).

Next, Prince Humperdinck would have to give Buttercup access to the Royal Lawyer (or, at least, the opportunity to go find her own attorney). A Premarital Agreement can still be valid even if one party chooses not to consult with counsel, but both parties must have the opportunity to do so.

Prince Humperdinck might also struggle to meet a few other legal prerequisites. As we all know, Buttercup was not exactly a willing participant in the marriage. Odds are, she would have been signing the Premarital Agreement under duress. That right there is grounds for invalidation. Prince Humperdinck’s intent to remain married might also be called into question given his prior attempt at killing Buttercup. (This might be a good time to note that a Premarital Agreement cannot, in anyway, limit the rights of a victim of domestic violence.)

If the Prince did find a way to muster a valid Premarital Agreement, he would want to clearly identify his separate property and that of Buttercup’s. Prince Humperdinck and Buttercup would want to address inheritances and gifts, create mechanisms to allocate income and expenses during the marriage, and address property acquired jointly (including earnings). They would want to discuss future liabilities and credits, tax liabilities (if the Prince even paid taxes), and estate rights upon death.

Of course, even if Prince Humperdinck and Buttercup did everything right and created a valid, binding Premarital Agreement, a Court could still muck things up. First, law and equity always apply which means that if a Court finds a Premarital Agreement unconscionable to one party or the other, the Court can supersede it. A Premarital Agreement cannot adversely affect a child’s right to support, and any provision attempting to address custodial responsibility is automatically void.

We should all be glad that Westley and Buttercup ended up together if for no other reason than the avoidance of the legal fees Prince Humperdinck would have inevitably incurred on behalf of the Florin taxpayers. …and in case you’re wondering, the Colorado Marital Agreement Act applies equally to civil unions. So, if Inigo Motoya and Count Rugen decided to set aside their differences and start a life together, Inigo Montoya could use a Premarital Agreement to protect his inheritance from the man who killed his father. Of course, that probably wouldn’t happen. Wedding vows should be a bit warmer than “My name is Inigo Montoya. You killed my father. Prepare to die.”